Testimony: Officer worsened Thomas encounter

Oct. 11, 2012

Updated Aug. 21, 2013 1:17 p.m.

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Former Fullerton police Officer Joseph Wolfe was indicted Sept. 24 on one felony count of involuntary manslaughter and one felony count of the use of excessive force in connection with the beating death of 37-year-old homeless man Kelly Thomas. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

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A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

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Ex-Fullerton policeman Joe Wolfe, at far left, leaves Superior Court with one of his attorneys Michael Nasatir, third from left, in Santa Ana on September 27, 2012. Wolfe, who was indicted Thursday, was the first officer to strike mentally ill transient Kelly Thomas during the July 2011 melee that led to Thomas' death. He has been indicted by the Orange County grand jury. FILE: H. LORREN AU JR., THE ORANGE COUNTY REGISTER

Former Fullerton police Officer Joseph Wolfe was indicted Sept. 24 on one felony count of involuntary manslaughter and one felony count of the use of excessive force in connection with the beating death of 37-year-old homeless man Kelly Thomas.JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

Then-Fullerton police Officer Joe Wolfe instigated "as much as anyone else" the fatal beating of a mentally ill homeless man last summer, a retired police chief told the Orange County grand jury, according to transcripts released Thursday.

Wolfe talked to Kelly Thomas with scorn and then accelerated an already-heated encounter into a deadly beating when he struck the first blow, Joseph McNamara, a former chief in Kansas City, Mo., and San Jose, testified. McNamara, an expert on police use of force, said Wolfe and then-Officer Manuel Ramos coerced and threatened Thomas "behind the power of their uniform, their clubs and their badge and their guns with total disrespect," according to the transcripts.

"This is not conduct that officers find reasonable," McNamara testified. "My opinion is that Officer Wolfe used excessive force, and in fact, accelerated more than, or as much as anyone else, in the tragic result in this force that was used against Kelly Thomas."

McNamara was one of 10 witnesses who testified in secret last month, leading to the indictment of Wolfe. The officer was the first to strike the schizophrenic Thomas after a routine call came in that someone was pulling on car doors in a parking lot near downtown Fullerton.

That call escalated into a deadly struggle between Thomas and six Fullerton officers that was captured on surveillance video. Thomas died five days after the beating.

The grand jury issued its indictment Sept. 27, accusing Wolfe, a 13-year-department veteran, of involuntary manslaughter and excessive force. The transcripts of the grand jury proceedings were made public Thursday.

Wolfe is free on $25,000 bail. He has a pretrial hearing Nov. 2 before Superior Court Judge William Froeberg, who also is presiding over the cases of two other former officers charged in the July 5, 2011, beating.

Ramos was charged by the Orange County District Attorney's Office in September 2011 with second-degree murder and involuntary manslaughter. He is the first Orange County lawman to be accused of murder for an incident that occurred while in uniform and on duty.

Jay Cicinelli, who was a corporal with the Fullerton police, was charged at the same time with involuntary manslaughter and assault under the color of authority. Both Ramos and Cicinelli are out on bail pending a Nov. 30 hearing on a defense motion to dismiss charges.

Orange County District Attorney Tony Rackauckas filed charges directly against Ramos and Cicinelli more than a year ago. At the time, his office said it did not have evidence to support criminal charges against Wolfe, although prosecutors emphasized that their investigation was continuing.

Rackauckas chose to take the Wolfe case to the grand jury and presented much of the case himself in seeking an indictment, the transcripts show. He told the grand jury that Wolfe used his weight to hold Thomas down, then used his elbow and forearm to hit him.

"You can see the blood in the video," Rackaukus told the grand jury. "The shiny material by officer Wolfe's foot, you can see it there starting to pool up."

"This is a matter for society to pay some attention to, because in order to have a lawful police force, there need to be limits," Rackauckas said, according to the transcripts. "And so the police are certainly able to use force as required, as necessary, but it needs to be lawful force. It needs to be the force necessary to do their lawful duty."

Thomas died because his chest was compressed, which prevented him from breathing and deprived his brain of oxygen, Dr. Aruna Singhania, the county pathologist who performed the autopsy, testified. But she added that all of the injuries Thomas suffered – a broken nose, a bloodied eye, bruises on his torso, cuts to his face – contributed to his death.

Thomas was comatose when he arrived at UCI Medical Center's trauma unit, and his heart had already stopped and been restarted, Dr. Michael Lekawa, the medical director, testified. Thomas later opened his eyes but never regained consciousness, Lekawa said, and was declared brain dead five days after the beating.

The hospital ran tests on Thomas' blood and urine when he arrived. Those tests found no signs of methamphetamines, amphetamines, marijuana, cocaine, PCP or alcohol in his system, Lekawa said.

McNamara, the use-of-force expert who started his career as a New York City policeman, said Ramos and Wolfe needlessly escalated the situation after Thomas talked back when they first approached.

"This guy (Thomas) wasn't a master criminal with a passport to Brazil," McNamara testified. "He is kind of a sad homeless person that is no danger physically to anyone. He may be an annoying person. But he certainly didn't deserve to pay the death penalty."

Ramos, 39, questioned Thomas for about 15 minutes before the encounter escalated, according to a surveillance tape that captured most of the incident.

Wolfe delivered the first blow, striking the back of Thomas' leg with his baton, according to the videotape. Ramos then joined him in trying to wrestle Thomas to the ground. The two officers grappled with Thomas before four other officers – including Cicinelli – arrived at the scene and piled on, according to the video.

Among the evidence considered by the grand jury was testimony from witnesses who said Thomas struck back after the officers used their batons and tackled him to the ground.

One witness – a cab driver – told an investigator that an officer hit Thomas with a baton, making the homeless man back away about three to five steps. The officer then punched Thomas, who "immediately punched the officer back twice in the cheek."

Some of the material provided to the grand jury was given to them at the request of Wolfe's attorney, Vicki Podberesky, who also asked that jury members be given pictures of her client after the incident, and details of Kelly Thomas' history of previous contacts with police officers.

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